‘Judges being overworked is no reason to limit justice’

When judges are vilified for evaluating whether Parliament should play a role in the Brexit debate – criticised, in other words, for judging, which is their job – this reflects a strange misunderstanding of the nature of constitutional law. And yet it cannot be denied that sometimes judges prove that they are out of touch with the world around them. This is evident in the recent Court of Appeal decision in the case of Mehmet Ordu v. The Crown.

Mr Ordu fled Turkey because – as the courts would later rule – he had a well-founded fear of persecution there. In order to get to Britain he used a false passport. Of course he did. Certainly, a refugee cannot pop into the local passport office and tell the government official that he needs to go traveling to avoid being tortured.

Mr Ordu’s welcome to the UK in early 2007 came with a citation that he had violated the Identity Cards Act 2006 – a monstrously unwise piece of Labour legislation that came into force on March 30, 2006, and which the Conservatives and Liberal Democrats pledged to eliminate the moment they got into office. Mr Ordu’s barrister told him there was no defence, and so he pled guilty and was given nine months in prison. Because the act was so flawed, it was repealed and replaced with the 2010 Act.

Today, nobody seriously contends that Mr. Ordu could have been convicted of the offence. If he were permitted to appeal, clearly he would prevail. Indeed, it is silly enough to think that a terrified refugee, coming to Britain, would have stopped to check the statute books on line to see if any new misguided laws had come into force that year.

But it is far worse that he cannot now have his criminal record eliminated – seemingly because the Court of Appeal does not think there is much point.

‘He has now lived through all the adverse consequences and the conviction and emerged to a happier, more settled and safe life in the United Kingdom,’ Lord Justice Colman Treacy, Justice Clive Lewis and Justice Andrew Edis unanimously opined. ‘The conviction and sentence is now a long time ago and quashing the conviction will not remedy the unpleasant memories which are now its only legacy. On the information before us, quashing the conviction would actually make no real difference to the applicant’s life at all, and in those circumstances it is impossible to say that a substantial injustice will occur if this appeal is not allowed to proceed.’

With respect, this is nonsense.

With a criminal conviction on his record, even a ‘spent’ one such as this, there are many things Mr Ordu cannot do. Justice Lewis studied at Dalhousie College in Canada: Mr Ordu will be lucky to get a visa to go anywhere, and he certainly won’t be able to take his kids to Disneyworld. Perhaps Justice Edis likes to help out at his three kids’ school: Mr Ordu won’t be able to, as he will need a certificate from what used to be called the Criminal Records Bureau, now rebranded the Orwellian Disclosure & Barring Service.

While it was suggested, after the expenses scandal, that the Houses of Commons and Lords had the highest criminal conviction rate of any subset of society, Lord Treacy would not be where he is today if he had a criminal record: likewise, Mr Ordu will face rejections at many interviews when he seeks a new job to support his family. And so it goes on. It is absurd to think that a criminal conviction has no lasting stigma.

It has been suggested by others that the Ordu decision is based on the ‘appalling vista’ that judges would have to deal with scores of appeals that they just don’t think are very important. If this is true, it is not the first time such considerations have played a role. Doing justice means work for judges. Indeed, it would be naïve to ignore the very real impact that doing justice has on, for example, the US Supreme Court justices. When executions peaked at 98 in 1999, the justices were being faced with at least one last minute stay application every working day. I know, because I filed a lot of them and we were still in litigation at midnight. The justices – often octogenarians like Ruth Bader Ginsburg – had to stay up every night to resolve the issues before them.

It must exact a terrible toll.

Yet that is a judge’s job. The primary duty of a judge is, surely, to protect the weak against the almost omnipotence of government. The judge’s sense of being overworked is not a principle on which to limit legal rights – it is an argument for greater judicial resources.

In his 2015 keynote address to the Sentencing Council, Lord Treacy made the following comment early on:

‘So firstly, justice reform and efficiency – something we are all increasingly conscious of. Now I don’t want this to be about money – that is not what I mean by efficiency; I believe the criminal justice community should be trying to move collectively towards better outcomes for victims and witnesses. I believe that two of our forthcoming guidelines will have a positive impact on efficiency and bring benefits for victims and witnesses as well as for practitioners like many of you here today.’

It is revealing that he does not even mention the person on the receiving end of these sentencing guidelines – the person who is being sentenced. Meanwhile, it is very difficult to divine what the principle is that undergirds the Ordu decision: are we to take it that justice is no longer available when judges think it is just not worth their while dealing with an utterly invalid criminal conviction?

This is an area where the UK could look to the US. There are many foolish aspects of US law, of course, but in this area our rule is that a writ of habeas corpus may be brought against a conviction if it continues to have an impact that could be neutralised by a favourable decision. Under the American rule, Mr Ordu’s appeal should surely be allowed, since the consequences of his inequitable conviction are still very real.

About Clive Stafford SmithClive Stafford Smith is a licensed Attorney in Louisiana, USA and is a member of the advisory group for the UK legal charity the Centre for Criminal Appeals who investigate and litigate miscarriage of justice cases